REVISED TORTS NOTES
·
Jury Issue
·
some jurisdictions treat this as a legal question (so a question for the judge).
·
P must win both to prove causation.
·
Judge issue.
·
sometimes the law rewards bounty hunters, so the court awards P punitive damages
·
(Professor Crowley thinks Punitive damages are regrettable part of Torts law).
·
P’s attorneys are paid 1/3 of damages, this may influence juries to award P more money.
·
Civil rights cases – usually little money at stake. Attorneys’ fees are paid by defendants, with judicial supervision. Otherwise, few civil rights cases would be brought – attorney’s couldn’t afford to.
·
Deny all 4 elements (duty, breach, causation, harm) – you don’t know which one you are going to win on.
·
Affirmative Defense: say, “yeah, but . . .” burden of proof on D to prove.
·
How to figure damages? Need a damage-assessing mechanism.
·
Are contracts able to trump the rules?
·
How do we determine causation? How do we know when the ox’s gore is the cause of death?
·
must give opposing party 18-month notice before bringing suit.
·
Plaintiff must find an expert willing to testify before any discovery is made.
*
Discovery:
·
This is the general thrust of products liability.
·
This was a faint recollection of 19th century.
·
Enough success that tort reform movement is now largely ad hoc.
·
Also, aims to cap pain and suffering damages to $250,000.
·
Judicial system itself begins to fight back.
*
US Supreme Court overrules, as unconstitutional, state supreme court rulings regarding tort reform.
·
This criticism overlooks how jurisdiction works. You don’t export liability rules.
*
Jurisdiction:
·
Undermines productivity – straps manufacturers with large (or possibility of large) liability payments – this amounts to a tort tax.
·
Even if D’s conduct is unobjectionable, they are still punished (either by settling or unfair jury decisions). In this sense, it discourages the wrong people.
·
Lawyers get paid too much.
·
Promotes letigisness.
·
Promotes recognition of certain injuries – court system tells you you’re hurt.
·
Promotes commodification – reduces death/injury to dollars.
·
Increases Moral Hazard: propensity to engage in risky behavior because one is insured against injury – or riskier behavior than one would have engaged in otherwise.
*
Insurance deductibles set up to try to eliminate this.
·
Engenders paranoia – discourages rescuing.
·
Reputation of American legal system takes a hit abroad. a court can rule over you if you have property sufficient for a sheriff to put a padlock on your stuff. fact-finding thru depositions, interrogatories between P and D, etc.
I. Preface
A.
1.
2.
3.
4.
5.
a.
In rule 1, we see that in certain senses, both sides can claim innocence. Therefore, torts is not the business of assigning guilt and innocence.
Rule 5: Ox falls in open well and dies. Well-digger reimburses victim. Rule 4: Death to ox by vicious ox. Owner of live ox pays victim.Rule 3: Death to ox by non-vicious ox. Sell live ox, share both dead and proceeds from sale. Rule 2: Death to person by vicious ox. Ox stoned, owner put to death, but owner can buy his way out. Rule 1: Death to a person by non-vicious ox. Owner loses ox.
B.
1.
2.
3.
4.
5.
a.
i.
Does not follow that strict liability makes contributory negligence no defense.
b.
Voluntary assumption of risk – no defense because P had choice of 2 evils forced upon him by D. (risk running to his car, or stay inside indefinitely (or a possible 3rd – shoot the hog)) D on his own land, so P cannot trap him on his own land. It was wrong for P to impose these decisions on D. contributory negligence – no defense because P knew or could have known hog was vicious. The viciousness of hog makes P strictly liable.
6.
7.
a.
No – as a matter of principle it is more important that my freedom on my property is secure than that the price of bacon stay low. It is an inherent risk of hog farming that the hog may bite, and the farmer will be held liable for that bite.
does it give us pause to think that the cost of bacon will rise? Why the decision? (what policies are being promoted and why?)Court: D-also argues for P’s voluntary assumption of risk – by running out to his car when the hog was known to be in the area.D-argues that P was contributarily negligent – did not put up a fence, kill the hog, etc. P-argues that D was negligent – did not restraint known (or should have known) violent hogNeighborliness breaks down, so torts law comes into effect
C.
1.
2.
Also, products and services liability very commonToday, car accidents are paradigm torts cases.
D.
1.
2.
a.
We don’t dwell on these cases much.
3.
a.
b.
We want to know what torts cases look like today. These are the modern-day consequence of earlier, important cases.
Cutting-edge cases that push the envelope. Cases are not that historically important in and of themselves, but they capture or illustrate some common law proposition. Classic, historically important cases in the law.
E. tortfeasor
F. victim
G. Tort Statue of Limitations
H.
1. Deterrence: (
2. Compensation:
3.
a.
implied 2nd independence – we will have some compensation after deterrence is satisfactorily achieved.
there is a practical independence between compensation, deterrence(insurance)
a.
Why compensation for victim? 1. Sense of security (for victims). 2. Motivate victim to bring suit, rather than place burden on society. prevention) We want to put pressure on people so that we only have inevitable accidents. We want to deter people from being irresponsible.
I. Fault-based liability:
J. Strict liability
K.
L. Procedures
: rules of procedure influence resolution of disputes. What are the complimentary systems to the rules? The rules don’t require compliance. i.e. neighborly norms. Do the rules come into force after the other systems have broken down? : liability regardless of negligence, etc. Most important roles of tort system: deterrence and compensation: 2-3 years. – plaintiff – defendant.In this class we read three types of cases:Locomotives helped develop torts law – running over people, sparks set farmers’ fields on fire.Marshall v. Ranne: (D’s hog bites P’s Hand)
II. Introduction
A. Tort
1. Torquere
a. torture
b. tortious
– verb for tort (not torturous-verb for torture): keep on twisting
2.
3. Capsule Summary of Torts –
a. Duty
i. Reasonable Care:
ii. greater duty of care/more than reasonable care
iii. less than reasonable care
– do not attach liability. Ex. Adult trespasser on my property. I can’t put a spring gun on my door (can’t set traps), but if he slips on my banana peel, I am not liable. – strict liability is one example – a duty not to harm, even if we take the utmost care not to harm TofA (term of art) – the basic duty I owe to others – neither too little nor too much care.
b. Breach
i.
Tort law does not generally recognize omissions – law does not require D to do something, it does require P to prove D’s affirmative action as tortious.
c. Causation
i. But-for-Cause:
ii. Proximate Cause:
How close was D’s conduct to P’s suffering? Was D’s wrongdoing close enough (in time or space) to P’s harm that we want to attach liability? If yes, D is liable. If no, D is not liable. Cause-in-fact. “But for D’s wrong doing, would P have been injured?” Was D’s conduct a necessary factor of P’s injury? If we take away D’s conduct is P still injured? This test is over-inclusive.
d. Damages/Harm
i. Economic Harm
ii. Non-economic harms
iii. Punitive Damages
: here, Tort system borders criminal system. Focus is on D as punishment – we are mad at D/have hard feelings.: pain and suffering. Residual inconvenience/pain after economic harms have been rectified.: Harms that P suffers because things become more expensive for him.
e. Defenses
i. P’s Care: Contributory Negligence
ii. P’s Consent: Assumption of Risk:
iii. Other Defenses:
P knew what she was doing, knew the risk – Can’t then go back and sue for damages: P engaged in some conduct that itself was unreasonable-bars recovery even if all 4 element
a loss. If the law doesn’t recognize you as deserving compensation, then the stuff was not really yours – at least, it was partly his who destroyed it. We do want to cramp down on crimes, but we don’t want to cramp down on torts because generally people are engaged in good behavior (behavior we want to encourage). Torts is around to clean up when people, engaged in good behavior, make mistakes. : if we both freely enter into contracts, the premise is that we are both advancing our interests. Depends on several assumptions to determine if the contract is enforceable or not.
E. Institutions:
1. Market
2. Law
a. Regulatory
b. Criminal Law:
attach criminal liability to persons who give rise to specific risks. We do this in some areas, like environmental pollution. agencies: OSHA, DOL, DOE, Consumer Products Safety Administration. Public bodies can and do allocate resources, they compliment the legal system.
3. Nature
– let the chips fall where they may. It will all even out in the long run, or even if it doesn’t, we shouldn’t worry about it. Most extreme. – least extreme: – we don’t need the law to handle it. We can do it for one another through cooperation, etc. Market can successfully allocate resources, etc.
F. Reputation of Tort Law
1. Political/Activists Critics of Tort Law, Tort Reform
a.
b.
c. 19th Century:
i.
ii.
This was done to support growth, industry. Had to show that D was negligent in order to collect.
d. 20th Century:
i. 2nd Restatement
ii.
Calebresi published in 1970, and we see judicial and scholarly developments pointing in the same direction. (published in 1965) is high point of strict liability, especially in products liability.
e. 1980’s:
i.
ii.
iii.
iv.
Tort reform now largely concerns medical malpractice.Movement was largely successful. Most states adopted tort reform legislation. This movement was a push to rely more on contract – on insurance rather than the tort system. Strict liability has gone too far. It hurts business. Let’s rely increasingly on contracts.
f. 90’s:
i.
ii.
iii.
Resistance to reform grows. Unprecedented economic growth.Success of movement,
g. Tort Reform Movement of Today:
2. Criticisms of Tort Law:
a. Criticisms that are confused – don’t make sense:
i.
Puts American businesses at a disadvantage to other businesses.
in the same direction as that in the 80’s, but just on a smaller scale. tort reform largely dying out, due to:Tort reform movement. Revival of strict liability. Rise of negligence-based liability where causation was no longer a sufficient condition of moving money. England and early American tort systems were characterized by strict liability.
In the earliest days we didn’t have tort liability. to look to for sorting out problems/accidents CRIM. LAW – intent. torts – TORTS – products liability – CONTRACTS – TRUSTS HIGH TRANSACTION COSTS ——– LOW TRANSACTION COSTS. Transaction Costs: the costs of entering into a contract. accidents happen. There is risk inevitably associated with life. Torts is a system of dealing with accidents. Where is torts relative to rest of law?
: Webster’s dictionary – wrong for which one can recover – an injuryExodus capped centuries of common-law development.
ii. Criticisms are not confused, they are just off the mark
